The Supreme Court is set to hear oral argument in October on whether class and collective action waivers are enforceable. While employers await the Supreme Court’s decision, other courts continue to weigh in on the matter. Just last week, a New York State appellate court in Gold v. New York Life Ins. Co., 2017 NY Slip Op 05695 (App. Div. 1st Dep’t, July 18, 2017), found itself aligned with those federal circuit courts of appeal invalidating these waivers. Given the continuing disagreement among courts across the nation – both federal and state – as to whether the Federal Arbitration Act’s policy favoring arbitration should trump the National Labor Relations Act’s prohibition on contracts that restrict the rights of employees to engage in collective action, the need for clarity from the Supreme Court is more urgent than ever. Employment Matters will of course continue monitoring these important developments, so please check back in for regular updates.
The Second Circuit said last week that an employer violated the National Labor Relations Act when it fired an employee who criticized a supervisor on Facebook during an election. The catch here is that the Second Circuit reached this conclusion even though the employee used profanity and hurled personal insults at the supervisor as part of his criticism. As we discussed in a post at the time of the NLRB’s initial determination, while the employee’s conduct pushed the boundaries of protected concerted activity under the NLRA, the fact that the post contained an express pro-union message and occurred in the heat of a campaign contributed to the finding that the termination was unlawful.
This past week, the D.C. Circuit Court of Appeals issued an important decision addressing two on-the-bubble workplace confidentiality policies – one which made the cut, while the other one made its way over to the legal equivalent of the NIT. The decision explored the boundaries of workplace directives related to the discussion of salary and employee discipline information and non-disclosure in investigations.
With the 9th Circuit’s late summer anti-class action waiver decision, the circuit split widened over the issue of whether employers can require employees, through an arbitration agreement, to waive their rights to bring class or collective actions against their employer. This issue will almost certainly reach the Supreme Court given the deepening divide and the Court’s previous apparent interest in addressing issues surrounding class action waivers and arbitration agreements.
The Seventh Circuit recently became the first federal appellate court to say that employers can’t prevent class/collective actions through waivers in mandatory arbitration agreements, holding that such waivers interfere with employees’ rights to engage in concerted activity in violation of the National Labor Relations Act. The court’s holding in Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016), creates a circuit split on this issue and calls into question the effectiveness of such waivers for employers with employees working in states covered by the Seventh Circuit (Wisconsin, Illinois and Indiana).
Earlier this month, the NLRB struck down a couple of facially-neutral workplace civility rules in an employer’s Code of Conduct. Ho hum, business as usual. (We have written extensively about the Board’s crusade against what it considers overbroad work rules. See, for example, our posts here, here and here) What is fascinating, however, about this otherwise unremarkable decision is the spirited dissent penned by Member Philip A. Miscimarra, calling for the NLRB to overrule Board precedent which renders unlawful all employment policies, work rules and handbook provisions whenever employees could “reasonably construe” the language to prohibit the exercise of rights afforded by National Labor Relations Act Section 7, which protects “concerted” activities that employees engage in for the purpose of “mutual aid or protection.” Rather, as detailed below, Member Miscimarra proposes a balancing test, which would take into consideration, at minimum, (i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.
Donald Trump has become part of the national conversation. Not a single day goes by now without Mr. Trump filling up at least one news cycle. His recent success reminds me of a fantastic exchange in Private Parts when a researcher is explaining Howard Stern’s improbable success to the infamous Pi … let’s just call him Phil Vomitz:
Researcher: The average radio listener listens for eighteen minutes. The average Howard Stern fan listens for – are you ready for this? – an hour and twenty minutes.
Phil Vomitz: How can that be?
Researcher: Answer most commonly given? “I want to see what he’ll say next.”
Phil Vomitz: Okay, fine. But what about the people who hate Stern?
Researcher: Good point. The average Stern hater listens for two and a half hours a day.
Phil Vomitz: But… if they hate him, why do they listen?
Researcher: Most common answer? “I want to see what he’ll say next.”
Not surprisingly, not a single day also goes by without a workplace water-cooler (or better yet, chat room) conversation about Mr. Trump (or any of the other presidential candidates.) It can run the spectrum from some friendly banter among co-workers, to a serious dialogue about the issues facing this country, all the way to a heated disagreement coupled with threats of violence. And it begs the question: how can employers respond to employee political speech in the workplace? This post addresses that issue.
My colleague, Don Schroeder, was quoted in the Corporate Counsel article, What Employees Can Legally Say on Facebook – And Get Away With, in which he comments about the NLRB’s continued expansion of the meaning of protected concerted activity on social media. The article examines the boundaries of acceptable employee online speech and the legal protections employees can and cannot get under Section 7 of the National Labor Relations Act.
The NLRB has once again held that a mandatory arbitration agreement including a class/collective action waiver violates the National Labor Relations Act. With barely an acknowledgment that the Fifth Circuit reversed its last two decisions reaching the same conclusion, the Board ruled in Amex Card Service Co., No. 28–CA–123865 (Nov. 10, 2015), that Amex committed an unfair labor practice by maintaining and enforcing an arbitration policy that required employees, as a condition of their employment, to resolve all claims against the company through individual arbitration.
My colleague, Don Schroeder, was quoted in the Corporate Counsel article, Circuit Court Backs NLRB on Social Media Conduct, Voids Handbook Provision, in which he analyzes the NLRB’s stance on employer rules regarding worker conduct on social media. In addition to his analysis, Schroeder provides language that can be used as a disclaimer for employers in the process of drafting their online employee speech policies. The article outlines the latest ruling in Triple Play Sports Bar & Grille v. NLRB and its impact on what is considered “protected concerted activity.”